Caruso v The Queen - [2020] SASC 174

Supreme Court of South Australia
(Criminal: Application)
CARUSO v THE QUEEN
[2020] SASC 174
Reasons for Decision of The Honourable Justice Livesey (ex tempore)
14 September 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with refusing to follow the direction to provide personal details, driving whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control, driving whilst there was present in his blood the prescribed concentration of alcohol and assault of a police officer.
Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing him bail.
Held, allowing the application; bail is granted.
Bail Act 1985 (SA) s 14, s 10A; Criminal Law Consolidation Act 1935 (SA) s 20, s 23; Liquor Licensing Act 1997 (SA) s 125; Road Traffic Act 1961 (SA) s 40V, s 47, s 47A, s 47B, referred to.
Smith v The Queen [2020] SASC 132, considered.

CARUSO v THE QUEEN
[2020] SASC 174
Criminal: Application for review of bail

LIVESEY J: This is a bail review pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) following the refusal of a magistrate to grant bail on 31 August 2020. Bail was refused by the Magistrate because the Magistrate formed the view that the applicant was a “prescribed applicant” and “special circumstances” as required by s 10A of the Act were not made out. In any event, the Magistrate would have refused bail even if the applicant did enjoy a presumption in favour of bail because of the risk of re-offending.
Circumstances of the alleged offending.
The applicant has been charged on information dated 31 August 2020 with the following offences:
1On 29 August 2020 the applicant refused to follow a direction to provide personal details pursuant to s 40V(2) contrary, to s 40V(4)(b)(i) of the Road Traffic Act 1961 (SA);
2On 29 August 2020 he drove a motor vehicle on Hutt Street whilst so much under the influence of intoxicating liquor as being capable of exercising effective control, contrary to s 47(1)(a) of the Road Traffic Act 1961 (SA);
3On 29 August 2020 he drove a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol as defined by s 47A, contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA). It is alleged that the relevant blood alcohol concentration was 0.135 grams in 100 millilitres of blood; and
4On 29 August 2020 he assaulted a police officer, a prescribed emergency worker whilst she was acting in the course of her duties contrary to s 20AA(3) of the Criminal Law Consolidation Act 1935 (SA).
I need not dwell for today's purposes on whether it is likely that charges two and three will both be pursued.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Caruso v The Queen

Details

AGLC: Caruso v The Queen [2020] SASC 174
Case: [2020] SASC 174
Decision Date: 14 September 2020

CaseChat Overview and Summary

Caruso v The Queen involved a dispute over the revocation and variation of bail conditions in a criminal matter. The applicant had been arrested and granted bail, but following an alleged incident of assault on a police officer, the prosecution sought to have his bail revoked. The case was heard in the South Australian District Court. The primary legal issue was whether the applicant's bail should be revoked or varied due to the alleged assault and his history of non-compliance with bail conditions. The court had to weigh the seriousness of the alleged offence, the applicant's history of reoffending, and his mental health circumstances.

The District Court considered the arguments presented by both parties. The prosecution highlighted the applicant's extensive criminal history, his failure to comply with bail conditions, and the gravity of the alleged assault. The applicant, on the other hand, argued that the alleged assault was not fully executed and that he was in an acute mental health crisis at the time. The court also noted the applicant's history of mental health issues and recent efforts to detoxify and rehabilitate. After considering these factors, the court decided that the seriousness of the alleged offence, coupled with the applicant's history of reoffending and disregard for bail conditions, warranted the revocation of bail.

The court concluded that the applicant's bail should be revoked and that he should be remanded in custody. The court's decision was influenced by the applicant's extensive criminal history, his failure to comply with bail conditions, and the gravity of the alleged assault. The court found that the applicant's bail should be revoked and that he should be remanded in custody pending the outcome of his trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Shortly following the applicant’s removal he was spoken to by police and he gave a false name. Around a week later the applicant was spoken to by police and arrested and taken into custody. He was granted bail and, following a hearing in the Magistrates Court in late March, a bail agreement was entered into and the applicant was again remanded.Considerations relating to bail. For the purposes of this review, I have been provided with a warrant history suggesting the necessity for warrants to be issued in 2011, 2014 (twice) and in 2015. It appears that when this matter was before the Magistrates Court, submissions along the following lines were made: The offence of assault of a prescribed emergency worker excluded the applicant from police bail. If the applicant had been able to apply for bail, police would have refused bail for the following reasons; the applicant has so far failed to comply with bail agreement. He has four first incident warrants issued between 2011 and 2015 for failing to appear before the Court and the applicant has three charges pending before the Adelaide Magistrates Court on 29 September 2020.The applicant has an extensive and varied criminal history, including five convictions for assault, aggravated assault by use of a weapon, loitering, drive unregistered motor vehicle and 16 “without convictions”. The applicant is currently on bail and appears to have a complete disregard for any restrictions placed upon him by continually reoffending. This bail authority is left with little option other than to send the applicant before the court to make a fresh submission so as to send a strong message of deterrence to the applicant. One of the applicant's pending matters relates to an assault where the applicant spat in the face of a female victim. In support of his review, the applicant contends that there are “special circumstances” but he also relies on the following matters: 1The assault comprised spitting towards, not on, the police officer and should be significantly differentiated from an assault that is fully executed because it is atypical of an offence of this type; 2The applicant has a considerable history of mental health difficulties and, on the evening of the alleged offending, he was in the grips of an acute mental health crisis;3In the past 12 months the applicant has attended the Glenside Hospital for detoxification on three occasions, each of seven to ten days’ duration. Three months and one week before the alleged offending, the applicant had attended the Woolshed at Strathalbyn for drug and alcohol rehabilitation for one week.4The applicant has been “drug and alcohol free” for 86 days before the evening of 28 August 2020 but, on that evening, he met with his brother and they discussed memories of significant physical abuse suffered, along with their mother, at the hands of their father; and 5The applicant has accommodation available with his mother who is a “pro-social” member of the community who owns her own home in Darlington.